DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2006-085 
 
xxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxx   

 

 

TECHNICAL AMENDMENT 

 
 
This proceeding was conducted under the provisions of section 1552 of title 10 and in 
response to a request by the Judge Advocate General (JAG), dated August 15, 2007, to return the 
Final Decision in Docket No. 2006-085 to the Board for a technical amendment of the order in 
accordance with 33 C.F.R. § 52.73.   

 

BACKGROUND 

 

In  the  application  for  BCMR  Docket  No.  2006-085,  the  applicant  asked  the  Board  to 
remove from his record an officer evaluation report (OER) for the period April 1, 2002, to March 
31,  2003,  when  he  was  serving  as  the  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx at a Coast Guard 
training center.  The disputed OER contained five low marks of 3 (on a scale of 1 to 7, with 7 
being best), ten marks of 4, and three marks of 5 in the various performance categories and a 
mark in the fourth spot on the comparison scale.  While serving in the same billet, the applicant 
had previously received OERs with marks of 4, 5, and 6 from a prior supervisor and reporting 
officer.  In support of his request, the applicant submitted substantial evidence of work that was 
not  acknowledged  in  the  OER  and  affidavits  from other officers who highly praised his work 
during the evaluation period.  The applicant also alleged that the members of his rating chain had 
been changed just three weeks before the end of the evaluation period. 

 
In his advisory opinion for the case, the JAG recommended that the Board grant relief by 
replacing the disputed OER with one prepared “for continuity purposes only.”  The JAG stated 
that under Article 10.A.3.a.2. of the Personnel Manual, the officer who served as the applicant’s 
reporting officer for all but the last three weeks of the evaluation period was required to prepare 
an OER for the applicant before leaving the unit but failed to do so.  The JAG submitted affida-
vits showing that the departing reporting officer knew that he should have submitted an OER for 
the applicant and intended to do so but was thwarted by command, who required him to submit 
only comments for the OER.  The departing reporting officer indicated that if he had prepared the 
OER as required by regulation, it would have been a significantly better. 

 
The Board found that the applicant’s record had been prejudiced by the violation of Arti-
cle 10.A.3.a.2. of the Personnel Manual “in that marks and comments throughout the disputed 

OER  would  likely  have  been  better  had  the  correct  officer  exercised  his  full  authority  as  the 
applicant’s reporting officer.”  The Board granted relief by ordering the Coast Guard to remove 
the disputed OER from the applicant’s record and replace it with one prepared “for continuity 
purposes only.” 

REQUEST FOR TECHNICAL AMENDMENT 

 

 

In  his  request  for  a  technical  amendment,  the  JAG  stated  that  in  July  2006  while  the 
application in Docket No. 2006-085 was pending, the applicant was “in the zone” for promotion 
to  captain  and  failed  of  selection  for  promotion  before  the  promotion  year  (PY)  2007  captain 
selection board while the disputed OER was still in his record.  The JAG stated that had that fail-
ure of selection been known to the JAG when it prepared the advisory opinion, the JAG would 
have recommended that the Board remove the July 2006 failure of selection from the applicant’s 
record.    Therefore,  the  JAG  asked  the  Board  to  issue  a  technical  amendment  to  its  Order  in 
Docket  No.  2006-085  to  remove  the  applicant’s  failure  of  selection in July 2006 by PY 2007 
captain selection board. 

 
The  JAG  noted  that  after  the  applicant’s  record  was  corrected  in  accordance  with  the 
Board’s  Order  on  January  16,  2007,  he  failed  of  selection  again  before  the  PY  2008  captain 
selection board, which convened in July 2007.  However, he stated, “as in-zone and above-zone 
records are presented to the [selection] board with no distinction regarding status, the applicant’s 
prior non-selection was not made available to the PY08 board.” 
 
 
The JAG included with his request an email showing that the applicant’s command had 
submitted an inquiry that triggered the request for a technical amendment because the applicant 
“believes the PY08 board should count as his first look for O-6.” 
 

SUMMARY OF APPLICANT’S PERFORMANCE RECORD 

 
The applicant’s military record contains many Achievement Medals and Commendation 
 
Medals and no negative entries, such as letters of censure or documentation of alcohol incidents.  
As  an  ensign  from  December  20, 1985, through June 19, 1987, the applicant served aboard a 
cutter first as the supervisor of the mess and then as the Operations Officer.  He received mostly 
marks of 4 in the various performance categories on his OERs as an ensign.  From January 25, 
1988, to June 30, 1990, the applicant served as the leased housing program manager at Head-
quarters.  His OER marks as a lieutenant junior grade rose from primarily 5s to almost all 6s, and 
his reporting officer was rating him as an “exceptional officer” in the sixth spot on the compari-
son scale by the end of his tour at Headquarters.   
 

On  July  1,  1990,  the  applicant  was  promoted  to  lieutenant  and  began  serving  as  the 
executive officer (XO) of a cutter.  After receiving mostly 5s on his first OER as an XO, the 
applicant received primarily marks of 6 on his OERs until his tour ended and he was transferred 
back to Headquarters in August 1992.  From August 17, 1992, through September 8, 1995, the 
applicant  served  on  the  staff  of  the  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.  
His marks rose from primarily 5s in his first OER in this billet to primarily 6s in his last OER.   

 

From September 26, 1995, through June 9, 1997, the applicant served as the commanding 
officer  (CO)  of  a  xxxxxxxxxxxxxxxxxxxxxxxxxxx.    He  received  primarily marks of 6 in the 
various  performance  categories  and  marks  in  the  fifth  spot  on  the  comparison  scale,  which 
denotes a “distinguished performer” ready for challenging, leadership assignments.  On August 1, 
1996, he was promoted to lieutenant commander. 
 

From  June  10,  1997,  through  April  30,  2000,  the  applicant  served  as  the  CO  of  a 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxx.    He received almost all 6s in the performance categories 
and marks in the fifth spot on the comparison scale.   
 
 
From May 1, 2000, through March 31, 2003, the applicant served as the xxxxxxxxxxx 
xxxxxxxxxxxxx, supervising three officers and fourteen enlisted members.  On his first annual 
OER in this billet, the applicant received nine marks of 5, nine marks of 6, and a mark in the fifth 
spot on the comparison scale.  On September 1, 2001, he was promoted to commander.  On his 
second annual OER in this billet and his first as a commander, the applicant received nine marks 
of 4, eight marks of 5, one mark of 6, and a mark in the fourth spot on the comparison scale, 
which denotes a “good performer” ready for challenging assignments.  The applicant’s third and 
last  OER  in  this  billet  was  the  OER  disputed  in  Docket  No.  2006-085,  which  the  Board  has 
already removed from his record. 
 
 
From April 1, 2003, through February 29, 2004, the applicant served as a xxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 
On his OER for this service, he received primarily marks of 4 and 5 and a mark in the fourth spot 
on the comparison scale.  He was “recommended for promotion with peers.”  
 
From March 1, 2003, through March 31, 2006, the applicant was detailed to the Depart-
 
ment of Homeland Security.  He served as xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.  In January 2006, he became the xxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.  On his first OER in this billet, he received 
nine marks of 5, seven marks of 6, two marks of 7, and a mark in the fifth spot on the comparison 
scale.  He was “recommended for promotion with peers.”  On his second OER, he received six 
marks of 5, ten marks of 6, two marks of 7, and a mark in the fifth spot on the comparison scale.  
He  was  “[h]ighly  recommended  for  promotion  to  O-6  where  his  proven  inter-departmental 
relationships and skill-sets can be leveraged.”  On his third OER, the applicant received thirteen 
marks of 6, five marks of 7, and a mark in the sixth spot on the comparison scale, which denotes 
an  officer  who  is  “strongly  recommended  for  accelerated  promotion.”    The  reviewer  added  a 
comment page in which he wrote that the applicant had “distinguished himself as a leader in the 
Coast Guard and DHS and has my highest recommendation for promotion to O-6.  He is well 
qualified for senior command and most highly recommended for command afloat or ashore.”   
 
The applicant failed of selection for promotion to captain (O-6) in July 2006 while the 
 
disputed OER, which the Board ordered removed in the Final Decision for Docket No. 2006-085, 
was still in his record.  The applicant received two more excellent OERs but failed of selection 
again in July 2007 after his record had been corrected pursuant to the Board’s Order in Docket 
No. 2006-085.   
 

1. 
§ 52.73. 
 
2. 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant's 

 
 
military record and submissions, the Coast Guard's submissions, and applicable law: 
 

The Board has jurisdiction over this matter under 10 U.S.C. § 1552 and 33 C.F.R. 

 
The  JAG  asked  the  Board  to  amend  its  Order  to  remove  from  the  applicant’s 
record his failure of selection for promotion in July 2006 before the PY 2007 captain selection 
board.    The  applicant’s  disputed  OER,  which  was  removed  by order of this Board in January 
2007, was still in his record in July 2006.  Under Engels v. United States, 678 F.2d 173, 176 
(Ct. Cl. 1982), to determine if the applicant is entitled to the removal of his failure of selection, 
the Board must answer the following two questions:  “First, was the [applicant’s] record preju-
diced by the errors in the sense that the record appears worse than it would in the absence of the 
errors?  Second, even if there was some such prejudice, is it unlikely that [he] would have been 
[selected for promotion in 2006] in any event?”   
 
The Board finds that the applicant’s record was prejudiced by the presence of the 
 
disputed OER, which contained very low marks in comparison with his other OERs.  Moreover, 
in the Final Decision in BCMR Docket No. 2006-085, the Board made the following findings: 
 

3. 

4. 

The Board must also determine, however, whether the clear violation of Article 
10.A.3.a.2.b. was prejudicial to the applicant’s record—i.e., whether the change in the reporting 
officer  caused  the  applicant  to  receive a worse OER than he otherwise would have—and, if so, 
whether  the  entire  OER  must  be  removed  or  just that portion prepared by the reporting officer, 
which is actually the best part of the disputed OER.  In BCMR Docket No. 151-87, it was held that 
“an OER will not be ordered expunged unless the Board finds that the entire report is infected with 
the errors or injustices alleged; unless the Board finds that every significant comment in the report 
is incorrect or unjust; or unless the Board finds it impossible or impractical to sever the incorrect/ 
unjust material from the appropriate material.” 

8. 

Therefore, the Board finds that the violation of Article 10.A.2.3.2.b. was prejudi-
cial  to  the  applicant’s  record  in  that  marks  and  comments  throughout  the  disputed  OER  would 
likely have been better had the correct officer exercised his full authority as the applicant’s report-
ing officer.  Moreover, as stated in BCMR Docket No. 151-87, the entire OER appears to have 
been “infected” by the error and it is “impossible or impractical to sever the incorrect/unjust mate-
rial from the appropriate material.” 

●   ●   ● 

4. 

 
To determine whether it is “unlikely that [the applicant] would have been [select-
 
ed  for  promotion  in  July  2006]  in  any  event,”1  the  Board  must  consider  the  remainder  of  the 
applicant’s performance record before the selection board to determine whether he could have 
been a competitive candidate for selection.2  However, the Court of Federal Claims has held that 
when an officer shows that his record was prejudiced before a selection board by error, “the end-

                                                 
1 Engels at 176. 
2 But see Quinton v. United States, 64 Fed. Cl. 118, 126 (2005) (holding that “[i]t is not enough, in determining that 
plaintiff was not likely to have been promoted, to comment only on his record.  Without comparing an officer to the 
other contestants, no reasonable mind can say how any particular individual would fare in a competition in which not 
everyone can prevail”). 

burden of persuasion falls to the Government to show harmlessness—that … there was no sub-
stantial  nexus  or  connection”  between  the  prejudicial  error  and  the  failure  of  selection.3    In 
requesting the technical amendment, the Coast Guard apparently concedes that there was a nexus 
between the erroneous OER and the applicant’s failure of selection in 2006.   
 

Under Article 14.A.3.b. of the Personnel Manual, the basic criteria that selection 
boards must consider in making selections for promotion include an officer’s performance evalu-
ations, professionalism, leadership, and education, as well as any negative entries, such as docu-
mentation of alcohol incidents or civil arrests.  Article 14.A.4.d. states that a captain selection 
board should pay most attention to the “[s]even years of immediate previous service or all service 
in present grade, whichever is greater.”  The applicant’s record includes many Commendation 
Medals and Achievement Medals and no alcohol incidents or other negative entries.  During the 
seven years prior to his failure of selection in 2006, the applicant received very high OER marks 
while in command of a vessel and while serving on detail to DHS.  Although he received a cou-
ple of mediocre OERs during those seven years, he was strongly recommended for accelerated 
promotion and for command ashore and afloat on his last two OERs before the selection board 
met. 

The Board notes that the applicant failed of selection in July 2007 even after the 
disputed OER was removed, but this failure does not prove that he would have failed in 2006 had 
the disputed OER not been in his record because each selection board is composed of different 
officers; each pool of candidates for selection is different; and each pool has a different oppor-
tunity for selection.4  In light of the excellence of most of the applicant’s performance record—
especially his OERs while in command and his most recent OERs5—the Board finds that it is not 
unlikely that the applicant would have been selected for promotion in July 2006 had the disputed 
OER not been in his record before the selection board.  Moreover, under 14 U.S.C. § 285, Con-
gress provided that each commander should have two chances to be considered for promotion to 
captain,  and  justice  requires  that  an  officer’s  record  should  be  substantially  correct  when  it  is 
reviewed by a selection board.6  Therefore, the applicant’s failure of selection for promotion in 
July 2006 before the PY 2007 CAPT selection board should be removed from his record. 

In accordance with the JAG’s request and the above findings, the Board should 
amend its Order in Docket No. 2006-085 to include removal of the applicant’s failure of selec-
tion for promotion by the PY 2007 CAPT selection board so that he will have another opportu-
nity to be selected by the next CAPT selection board. 
 

5. 

 
6. 

 
7. 

 

                                                 
3 Quinton at 125, citing Engels v. United States, 678 F.2d 173, 175 (Ct. Cl. 1982). 
4 The “opportunity for selection” for a particular selection board is calculated as the number of promotions the board 
is allowed to make divided by the number of officers “in the zone” for promotion. 
5 Godwin v. United States, 338 F.3d 1374, 1381 (Fed. Cir. 2003) (holding that “among all prior OERs, the most 
recent assessment of the officer’s performance is particularly informative as to the officer’s current capabilities and 
future potential”). 
6 Sanders v. United States, 219 Ct. Cl. 285, 302 (1979) (holding that “a substantially complete and fair record is a 
necessary requirement of proper consideration by a selection board”). 

ORDER 

 

The  Board’s  Order  in  Docket  No.  2006-085  is  amended  to  require  the  following 

additional correction of the military record of xxxxxxxxxxxxxxxxxxxxxxxxx: 

 
The Coast Guard shall remove from his record his failure of selection for promotion by 

 
 

 

 

 
 

the PY 2007 CAPT selection board, which convened in July 2006. 
 
  
 
 
 
 
October 4, 2007  
Date 
 
 
 
 
 
 
 
 
 
 
  

 
 Patrick B. Kernan 

 
 Dorothy J. Ulmer 

        

 
 Toby Bishop